Justia Communications Law Opinion SummariesArticles Posted in US Court of Appeals for the Seventh Circuit
Brown v. Kemp
The Wisconsin Constitution, Article I, section 26, protects the right to hunt. Since 1990, Wisconsin has had a special statute making it a crime to harass hunters in various ways; a 2016 amendment makes it a crime to interfere intentionally with a hunter by “maintaining a visual or physical proximity” to the hunter, by “approaching or confronting” the hunter, or by photographing, videotaping, audiotaping, or otherwise recording the hunter's activity. The plaintiffs oppose hunting. They have observed hunters on public land, have sometimes approached and confronted them, have photographed and filmed hunters’ activities, and intend to continue all those activities.The plaintiffs assert that the prohibitions violate the First and Fourteenth Amendments to the U.S. Constitution. In a pre-enforcement challenge, the district court granted the defendants summary judgment, finding that the plaintiffs lacked standing to bring an as-applied challenge to the law and that their facial constitutional challenges failed on the merits.The Seventh Circuit reversed and remanded, first holding that the plaintiffs have standing to bring both their as-applied and facial challenges before formal enforcement efforts because the statute has been used to harass and intimidate them and has caused them to refrain from engaging in activity protected by the First Amendment. Certain clauses of the law are unconstitutionally vague or overbroad. The statute discriminates against speech and expressive activity based on viewpoint and the defendants have not offered justifications for the provision that satisfy strict scrutiny. View "Brown v. Kemp" on Justia Law
Vidal-Martinez v. United States Department Of Homeland Security
Vidal-Martinez, a non-citizen, was arrested three times for operating a vehicle while intoxicated. DHS detained him and initiated deportation. Vidal-Martinez filed a habeas petition, arguing that his detention was unconstitutional because it impeded his ability to defend himself against the drunk-driving charges. ICE transferred Vidal-Martinez to county custody “until the completion of [the] criminal matter, then released to his ICE detainer.” Vidal-Martinez was convicted of DUI and sentenced to 236 days in jail. He was then returned to ICE custody. Due to a lack of evidence that he posed a flight risk or a danger to the community, the district court granted Vidal-Martinez’s habeas petition and ordered his release.Vidal-Martinez filed a FOIA request, 5 U.S.C. 552, seeking disclosure from ICE of documents related to his custody transfer. ICE produced 561 pages of responsive documents, some of which contained redactions. Vidal-Martinez challenged ICE’s redactions. ICE submitted a Vaughn index and a declaration from its FOIA officer explaining the legal justification for each redaction, citing attorney-client, work product, deliberative process privileges, and identifying information of government employees. Vidal-Martinez responded that ICE committed criminal conduct by transferring him to Indiana, so the crime-fraud exception to attorney-client privilege applied. The district court granted ICE summary judgment. The Seventh Circuit affirmed, finding no factual foundation in the record for criminal conduct or misconduct by ICE. The district court had an adequate factual basis to evaluate ICE’s withholdings. View "Vidal-Martinez v. United States Department Of Homeland Security" on Justia Law
City of East St. Louis v. Netflix, Inc.
The Illinois Cable and Video Competition Law requires operators to obtain statewide authorization and become a “holder” and requires anyone who wants to provide cable or video service to obtain permission from state or local authorities and pay a fee, as a condition of using public rights of way. In recent years traditional cable services have been supplemented or replaced by streaming services that deliver their content through the Internet. East St. Louis, contending that all streaming depends on cables buried under streets or strung over them, sought to compel each streaming service to pay a fee. None of the defendants were “holders.” A magistrate dismissed the complaint, concluding that only the Attorney General of Illinois is authorized to sue an entity that needs but does not possess, “holder” status.The Seventh Circuit affirmed, first concluding that it had jurisdiction under 28 U.S.C. 1332(a). Normally the citizenship of any entity other than a corporation depends on the citizenship of its partners and members but, under section 1332(d), part of the Class Action Fairness Act, an unincorporated entity is treated like a corporation. The court then held that the statutory system applies to any “cable service or video service” and the defendants do not offer either. If “phone calls over landline cables, electricity over wires, and gas routed through pipes are not trespasses on the City’s land— and they are not—neither are the electrons that carry movies and other videos.” View "City of East St. Louis v. Netflix, Inc." on Justia Law
National Police Association, Inc. v. Gannett Co., Inc.
The National Police Association (NPA), a non-profit organization, describes its purpose as “educat[ing] supporters of law enforcement in how to help police departments accomplish their goals.” In 2018-2019, some police departments around the country took issue with fundraising mailers the NPA sent residents, characterizing the solicitations as deceptive. The Indianapolis Star and the Associated Press reported on the alerts issued by these police departments in articles that questioned whether the money NPA raised went to police departments. Counsel for the NPA sent a letter to the publisher and AP’s general counsel, providing notice under Indiana Code 34-15-4-2 that the NPA considered the articles defamatory and intended to sue. The letter sought a retraction and removal of public access to online copies of the stories. NPA subsequently sued the publishers, alleging libel. The district court dismissed its case, reasoning that NPA never alleged “actual malice”—that the publishers were aware of an inaccuracy or had serious doubts about the accuracy of the material—when the stories were first published.The Seventh Circuit affirmed, rejecting “a novel interpretation of the Restatement (Second) Torts 577(2)” that would create a requirement that internet publishers remove previously published libelous information. The court declined to certify questions to the Indiana Supreme Court to confirm that such a duty exists in Indiana. The alleged duty lacks doctrinal support. View "National Police Association, Inc. v. Gannett Co., Inc." on Justia Law
Smith v. First Hospital Laboratories, Inc.
FSSolutions faxed Dr. Thalman several times to ask him to join its network of preferred medical providers and administer various employment screening and testing services to its clients. Thalman declined the invitation and instead invoked the Telephone Consumer Protection Act, 7 U.S.C. 227(b)(1)(C), to sue FSSolutions for sending him unsolicited advertisements. The district court dismissed the complaint after finding that the faxes were not “unsolicited advertisements” within the meaning of the TCPA because they merely asked to purchase Thalman’s own services rather than inviting him to buy something from FSSolutions.The Seventh Circuit reversed. While a fax must directly or indirectly encourage recipients to buy goods, services, or property to qualify as an unsolicited advertisement, Thalman plausibly alleged that FSSolutions’s faxes did just that by promoting the company’s network of preferred medical providers, a network that would bring Thalman new business in exchange for a portion of the underlying client fees. “[M]indful that many plaintiffs’ attorneys view the TCPA opportunistically, the court cautioned against overreading its opinion, which applies to unsolicited faxes that an objective recipient would construe as urging the purchase of a good, service, or property by emphasizing its availability or desirability. View "Smith v. First Hospital Laboratories, Inc." on Justia Law
Heath v. Wisconsin Bell, Inc.
The 1996 E-Rate program (Schools and Libraries Universal Service Support program, Telecommunications Act 110 Stat. 56), is intended to keep telecommunications services affordable for schools and libraries in rural and economically disadvantaged areas. The program subsidizes services and requires providers to charge these customers rates less than or equal to the lowest rates they charge to similarly situated customers. Heath brought a qui tam action under the False Claims Act, 31 U.S.C. 3729, alleging that Wisconsin Bell charged schools and libraries more than was allowed under the program, causing the federal government to pay more than it should have. The district court granted Wisconsin Bell summary judgment.The Seventh Circuit reversed. While Heath’s briefing and evidence focused more on which party bore the burden of proving violations than on identifying specific violations in his voluminous exhibits and lengthy expert report, Heath identified enough specific evidence of discriminatory pricing to allow a reasonable jury to find that Wisconsin Bell, acting with the required scienter, charged specific schools and libraries more than it charged similarly situated customers. It is reasonable to infer that government funds were involved and that if the government knew of actual overcharges, it would not approve claims. View "Heath v. Wisconsin Bell, Inc." on Justia Law
Ambassador Animal Hospital, Ltd. v. Elanco Animal Health Inc.
Elanco Animal Health sent Ambassador Animal Hospital two unsolicited faxes inviting Ambassador’s veterinarians and its owner to RSVP for two free dinner programs: one titled “Canine and Feline Disease Prevention Hot Topics” and the other “Rethinking Management of Osteoarthritis.” The faxes indicated that both programs had been approved for continuing education credits and provided the names of the programs’ presenters. The corners of each invitation included the trademarked “Elanco” logo, and the bottom of each fax contained a notice encouraging recipients to consult their state or federal regulations or ethics laws about restrictions on accepting industry-provided educational and food items.Ambassador filed suit, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. 227 (TCPA), and arguing that the faxes were unsolicited advertisements because the free dinner programs were used to market or sell Elanco’s animal health goods and services. The Seventh Circuit affirmed the dismissal of the complaint. The text of the TCPA creates an objective standard narrowly focused on the content of the faxed document. The faxes do not indicate—directly or indirectly—to a reasonable recipient that Elanco was promoting or selling some good, service, or property as required by the TCPA. The court rejected a “pretext” argument. View "Ambassador Animal Hospital, Ltd. v. Elanco Animal Health Inc." on Justia Law
Indiana Right to Life Victory Fund v. Morales
independent-expenditure political action committees (super PACs) do not give money directly to candidates, party committees, or ballot-initiative movements. They spend money themselves to advocate for or against candidates, parties, or initiatives. The Fund wants to operate as an Indiana independent-expenditure PAC but fears that the state’s Election Code does not allow it to accept unlimited donations from corporations, in violation of the First Amendment. Indiana’s election officials say they do not believe their laws could be enforced that way.Indiana’s campaign finance laws allow corporations to make contributions "to aid in the election or defeat of a candidate or the success or defeat of a political party or a public question.” Section 4 imposes limits on direct corporate contributions to candidates and party committees but imposes no cap on contributions to committees unaffiliated with a political party, such as PACs. Section 5 ensures that corporations cannot use PACs as a loophole to avoid contribution caps by requiring corporations to designate their contributions to PACs “for disbursement to a specific candidate or committee listed under section 4.” Section 5 does not address how or whether a corporation could earmark a contribution for a PAC's independent expenditure for or against a candidate or party.The Seventh Circuit certified to the Indiana Supreme Court Does the Indiana Election Code—in particular, sections 3-9-2-3 to -6—prohibit or otherwise limit corporate contributions to PACs or other entities that engage in independent campaign-related expenditures? View "Indiana Right to Life Victory Fund v. Morales" on Justia Law
Craftwood II, Inc. v. Generac Power Systems, Inc.
Two California hardware stores (Craftwood) are part of the Do It Best (DIB) hardware industry cooperative and wholesaler. Generac supplies goods to DIB for purchase by hardware retailers in the cooperative. Generac had an agreement with CMI, an independent sales and marketing representative, for assistance with promotion and marketing. CMI sent out faxes to DIB-member hardware stores advertising deals on Generac products, including three sent to Craftwood.The Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, forbids using “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” except where the recipient gave “prior express invitation or permission.” Generac cited the agreement that Craftwood signed when it joined the DIB cooperative, which refers to the provision of advertising and includes Craftwood’s fax number. Craftwood also opted to purchase advertising materials to send to its customers.The district court granted Generac summary judgment, finding that the contract between Craftwood and DIB evinced an agreement by Craftwood to receive faxes, including from vendors. The Seventh Circuit reversed, finding a material dispute of fact as to consent. The court noted the need to enforce the Act as written, although fax machines are now rare, and the common view that these suits are fueled primarily by plaintiffs’ attorneys looking for large fee awards that often come at the expense of small businesses. View "Craftwood II, Inc. v. Generac Power Systems, Inc." on Justia Law
GEFT Outdoor, LLC v. Monroe County Indiana
GEFT, a billboard company, sued under 42 U.S.C. 1983 because Monroe County did not allow the installation of a digital billboard along I-69. Receiving a sign permit required compliance with size limits, height restrictions, setback requirements, a ban on changeable-copy (or digital) signs, and a prohibition on off-premises commercial signs, The ordinance provided exceptions to the permit requirement for government signs and certain noncommercial signs. If a proposed sign was ineligible for a permit, the applicant could apply for a use variance, which required specific findings.The district court granted GEFT summary judgment and enjoined the permitting scheme and the variance procedures. The Seventh Circuit vacated in part, first declining to extend the injunction to encompass the entire ordinance. Monroe County’s substantive sign standards do not need a permitting scheme to function. Indiana law provides that local government entities can enforce their own ordinances through civil penalties or injunctions. The court reinstated the variance procedure. That procedure is a “prior restraint” but is not unconstitutional; it does not involve consideration of content, permits ample alternatives for speech, including displays of messages on signs, and it does not give the Board of Zoning Appeals so much discretion that it violates the First Amendment. View "GEFT Outdoor, LLC v. Monroe County Indiana" on Justia Law